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Chinese Government Requires Censorship Software To Accompany Computers Sold After July 1

August 6, 2009

Chinese official censorship of the Internet is not limited to the removal of content such as pornography or content deemed to violate intellectual property rights, but also includes the removal of content the government and Communist Party deem to be politically sensitive. As such, Chinese censorship practices violate international standards for freedom of expression. Officials now have announced a plan to extend the reach of government control over Internet use by requiring all computers sold after July 1 to be packaged with a single brand of government-approved "pre-installed" filtering software. The stated aim is to protect youth from pornography, but tests show the software also filters political and religious content, and could be used to monitor computer users' Internet activity. The move has raised concerns that officials are further tightening control over the free flow of information. The short notice and lack of transparency with which the policy was introduced and its potential to restrain competition and free trade also has raised concerns over China's compliance with commercial rule of law norms.

On May 19, 2009, the Ministry of Industry and Information Technology (MIIT) issued the Circular Regarding the Pre-Installation of Green Browsing Filter Software on Computers (Circular), which requires that computers sold within mainland China after July 1 must come "pre-installed" (yu zhuang) with the government-approved "Green Dam-Youth Escort" Internet browsing filtering software. The policy set forth in the Circular marks the first time the government has required computer manufacturers to include filtering software vetted by the government with all computers sold in China. The circular says MIIT, along with the Communist Party's General Office of the Central Guidance Committee on Ethical and Cultural Construction, and the Ministry of Finance (MOF), put the software through comprehensive tests and have spent public funds to purchase the rights to offer "Green Dam-Youth Escort" to the public for one year of use at no charge. The Circular states the purpose of the policy is to "establish a green, healthy, and harmonious" Internet and to "avoid harmful information on the Internet influencing and poisoning young people." Tests conducted by several outside sources, however, found the software also filters political and religious information, including references to Falun Gong.

The U.S. government has called on Chinese officials to revoke the mandatory pre-installation. The request came in a joint letter from U.S. Secretary of Commerce Gary Locke and U.S. Trade Representative Ron Kirk to their counterparts at MIIT and China's Ministry of Commerce, according to a June 24 press release posted on the Office of the United States Trade Representative's Web site. The letter "points out that the proposed new rule raises fundamental questions regarding regulatory transparency and notes concerns about compliance with World Trade Organization (WTO) rules, such as notification obligations," the release said. "China is putting companies in an untenable position by requiring them, with virtually no public notice, to pre-install software that appears to have broad-based censorship implications and network security issues," Locke said. "Protecting children from inappropriate content is a legitimate objective, but this is an inappropriate means and is likely to have a broader scope. Mandating technically flawed Green Dam software and denying manufacturers and consumers freedom to select filtering software is an unnecessary and unjustified means to achieve that objective, and poses a serious barrier to trade," Kirk said.

The Circular says the requirement applies to both Chinese and foreign companies selling computers in China. In the first three months of 2009, the Chinese company Lenovo topped the market, selling 26.7 percent of the units shipped during the period, according to a June 8 Wall Street Journal (WSJ) article, citing statistics provided by the IDC research firm. U.S.-based companies Hewlett-Packard and Dell sold 13.7 percent and 8.1 percent, respectively, of the units during the period. There were nearly 40 million computers sold in China in 2008, second only to the United States, the article said.

Impact on Freedom of Expression

The Chinese government already implements a system of censorship of the Internet that violates international human rights standards for freedom of expression. (See "Internet Censorship" in Section II - Freedom of Expression, in the Congressional-Executive Commission on China 2008 Annual Report.) Chinese laws require Internet service and content providers to remove politically sensitive content. The government blocks Web sites, including the Congressional-Executive Commission on China's Web site, and filters content containing politically sensitive information. Recently, for example, authorities reportedly blocked access to social networking and video-sharing Web sites such as Twitter and Flickr, just before the 20th anniversary of the 1989 Tiananmen Square protests on June 4. In an apparent move to protest Internet censorship at this time, numerous domestic Web sites shut down to undergo "maintenance." (For more information see, e.g., June 2 New York Times (NYT) article, June 4 Guardian article).

The new requirement, however, would extend the reach of government censorship and monitoring of citizens' Internet activities, according to foreign experts who have tested the software. A June report published by Open Net Initiative (ONI) found that the policy would "increase the reach of Internet censorship to the edges of the network, adding a new and powerful control mechanism to the existing filtering system." ONI is comprised of researchers from the University of Toronto, Harvard Law School, University of Cambridge, and Oxford University. In describing how the Green Dam software works, ONI said:

Not only does it block access to a wide range of Web sites based on keywords and image processing, including porn, gaming, gay content, religious sites, and political themes, it actively monitors individual computer behavior, such that a wide range of programs including word processing and email can be suddenly terminated if content algorithm detects inappropriate speech.

Researchers in the Computer Science and Engineering Division at the University of Michigan also found that the Green Dam software blocks both "obscenities and politically sensitive phrases (for example, references to Falun Gong)," according to a June 11 analysis.

The ONI report found that the software could be modified to monitor "personal communications and Internet browsing behavior" and that the scope of content that the software filters could be changed without any notification to the user. According to the June 8 WSJ article, the software, developed by the Jinhui Computer System Engineering Co. with assistance from Beijing Dazheng Human Language Technology Academy Co., operates by linking to an external database of sites that are to be blocked. Jinhui's founder, Bryan Zhang, told WSJ that the company would compile and maintain the list of blocked sites and would send updates of new blocked addresses to users' PCs. Zhang claimed that the list would be limited to pornographic sites, but that the software was capable of blocking other types of content, although Jinhui would have no reason to do so. Users will not, however, be able to see the list of "pornographic or violent" sites that the company has decided to block, according to a June 8 Reuters article.

The reports by ONI and the University of Michigan researchers also found that the software went much broader than what was necessary to protect children and that flaws in the software's design subjected the user to security risks, including infringement on personal privacy, hacking, and spam. The government has ordered Jinhui to fix recently discovered security vulnerabilities, according to a June 15 China Daily report.

The software's censorship of politically sensitive information and the broad scope of the pre-installation requirement violate international human rights standards for freedom of expression. Article 19 of the International Covenant on Civil and Political Rights (ICCPR) sets forth certain exceptions for when a government may impose a restriction on freedom of expression. These are limited to protecting the "rights or reputations of others," "national security, public order, or public health or morals." Article 19 also requires that the scope of the restriction be limited to that which is "necessary" to protect the interest. In this case, the government has provided a "public health or morals" justification for the restriction but, as tests have shown, the software also filters out political and religious content. Furthermore, the government has not shown why it is necessary to require that the software be "pre-installed" in all computers if the intent is to protect youth (see extended discussion and analysis of the "pre-installation" requirement below). Also as indicated below, citizens have suggested more limited ways that the government can achieve its aim.

Public Response in China

The MIIT's announcement sparked widespread criticism and discussion in China, including over the policy's impact on freedom of expression and its broad scope:

Wei Yongzheng, a professor at Hong Kong Shue Yan University, and Zhou Ze, an associate professor at China Youth University for Political Sciences, said in a letter to the State Council that although the MIIT's stated purpose is to protect youth, in practice the requirement could restrict Internet users from accessing other information, in violation of freedom of expression provisions in the ICCPR and the Universal Declaration of Human Rights, according to a June 11 Caijing article (in Chinese). The two scholars noted that Chinese laws do not clearly delineate what constitutes "harmful information" to be censored on the Internet. "The filtering system only needs to be installed in computers that youth may use, and their guardians can take responsibility," they said.

A June 9 Caijing editorial (in Chinese) also raised questions about what constitutes "harmful information." "Is there a transparency mechanism for the determination of the 'blacklist' and a free-flowing channel for corrections and remedies? How do they make sure this does not become a 'back door' for abuse of authority?" the editorial said.

In a June 11 editorial titled, "Questionable Move," the state-run English-language China Daily questioned why the government was requiring every computer to install the software when taxpayers' money could have been used to sponsor a Web site offering the software on a voluntary basis. The editorial also raised concerns about who would decide what content to block and the criteria for blocking. "Are software developers qualified to do that? How is citizens' freedom of expression or right to know to be balanced against the need to filter 'unhealthy' content?" read the editorial.

Online surveys conducted by four popular Chinese Web portals showed that more than four in five respondents indicated they will not use the software or will uninstall it, according to a June 15 China Daily article.

On June 22, Reuters reported that Internet users in China were calling for a boycott of the Internet on July 1 to protest the government policy.

Confusion Over Pre-Installation Requirement

Although the Circular does not require the computer user to use the software, many users may end up utilizing the software by default. The government has not clarified whether computer manufacturers must pre-install the software on the computer or whether they may fulfill the "pre-installation" requirement by merely providing a CD version of the software with the computer. The extent to which users will have the choice to manually activate the software if pre-installed in the computer will also impact how widespread use of the software will be.

The Circular appears to indicate that providing a CD-version of the software alone would be sufficient, although Article 2 of the Circular also requires that the software "be included in the recovery partition" in the computer as a backup file. Another June 15 China Daily report quoted an unnamed MIIT official as saying, "The PC makers only need to save the setup files of the program on the hard drives of the computers, or provide CD-ROMs containing the program with their PC packages." NYT, however, reported on June 18 that it could not obtain official confirmation of the unnamed official's interpretation that providing a separate CD alone would be sufficient. According to the NYT article, "[t]he directive makes clear that the government intends to ensure universal use of Green Dam on new computers in China." Other provisions in the Circular suggest that the government expects computer manufacturers to include filtering software beyond the one year it is available to the public for free. Article 5 requires computer manufacturers to report the number of computers shipped with filtering software on a monthly basis in 2009 and on a yearly basis starting in 2010.

Questions Over Transparency, Short Preparation Time, Government Procurement, and Intellectual Property Rights

Although the Circular is dated May 19, the MIIT did not post the directive on its Web site until June 9, less than a month before computer manufacturers are expected to comply. When the WSJ first reported the story on June 8, it said that the circular had not yet been publicized by state media. A June 25 WSJ article said that officials in China gave notice of the requirement to manufacturers in May. Officials from foreign companies said they were given little time to properly test the software. "The lack of transparency, the shortness of time for implementation, and the incredible scope of the requirement that is not matched anywhere around the world present tremendous challenges to the industry," an unnamed official told WSJ in the June 8 article. On June 16, 19 trade associations representing companies from the United States, Europe, Japan, and Canada sent a letter to the MIIT calling on China to reconsider the July 1 pre-installation requirement and to instead engage "in meaningful dialogue on the topic of parental controls," according to the June 17 issue (subscription required) of Inside US-China Trade.

In response to the Circular, Chinese citizens have filed requests with government agencies for more information, according to a June 15 Caijing article (in Chinese, shorter June 17 English version). On June 11 and June 12, Beijing lawyers Li Fangping and Liu Xiaoyuan filed separate open government information requests with the MIIT and MOF seeking information about the software and its procurement. Li told the Globe and Mail in a June 20 article that he was seeking the information because citizens "have no idea how this software would affect users' internet safety, the safety of their information, and right to privacy."

Chinese citizens also have questioned the legality of the government's endorsement of one product as part of a consumer's computer purchase. In their letter to the State Council, professors Wei and Zhou said the move violates Article 7 of the Anti-Unfair Competition Law, which says that governments "may not abuse their administrative powers to restrict others to buying the goods of operators designated by them." They also said the government had restricted competition in violation of the Anti-Monopoly Law (Arts. 8, 32, and 37), and had violated product quality and consumer protection laws, according to a June 12 CBN (Diyi Caijing) article. A June 10 editorial in the Beijing News questioned the fairness of the bidding process under the Government Procurement Law. The editorial noted that the bid went to two relatively unknown companies, despite the presence of a large number of Chinese and foreign companies with experience as well as reports that some well-known Internet security companies had not participated in the bidding. The June 8 WSJ article, citing material from Jinhui and Dazheng's Web sites, notes that the companies have ties to China's Ministry of Public Security and the People's Liberation Army.

An American company has alleged that the software violates intellectual property rights. The software company Solid Oak alleges that "Green Dam-Youth Escort" contains codes copied from the company's own parental control software and has sent "cease and desist" letters to U.S. companies to prevent them from shipping PCs with the software to China, according to a June 19 Financial Times article. Jinhui's founder denied the allegation.

Background

The Circular refers to an earlier government campaign begun in January 2009 to remove "vulgar content" on the Internet. The campaign's primary target appeared to be pornography, but employees at Web sites attempting to carry out the government's directive at the time noted increased pressure to control political content as well. In mid-January, the Beijing Municipal Government's Information Office reportedly ordered the closure of the blog hosting Web site Bullog (www.bullog.cn) after the site failed to remove large amounts of "harmful information" relating to current events and politics. The CECC noted increased blocking of foreign- and Hong Kong-based Web sites taking place in December 2008. The sites included the Chinese-language sites for the BBC, Voice of America, and Deutsche Welle, YouTube's Hong Kong and Taiwan sites, and the Web sites for the Hong Kong-based news organizations Ming Pao, Asiaweek, and Apple Daily. Google's YouTube video sharing Web site has been blocked in China since March, according to a June 20 WSJ article.

UPDATE: The Ministry of Industry and Information Technology announced a delay of the plan on June 30, 2009, a move the Commission reported on here.